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and then 24 and 25 Viet, ob. 96, sec. 65, wask passed in England, and the Larceny Ordinance in 1864 in this Colony, which rendered trustees liable for criminal breaches of trust, and included under the term Trustees""Assignees in Bankruptcy" both official and creditors'? It was pertinently remarked by Mr. Francis that if official assigneca aré persons employed in the public service of Her Majesty, they would more properly come within the range of section 57 (expressly enacted to meet the case of frands committed by that class of persons) instead of being comprised in co general description with the “ereditors'assignees" who are simply trustees under section 65. The ¦ fact is that they are trustees too; the bankruptcy law both here, section 53, and in England, having enacted that "all the personal estate and costa of any person adjudged a bankrupt, etc., shall become absolutely nested in the official or other assignee for the time being for the benefit of the reditors, etc., by virtue of their appointment. But it is necessary further to consider what public service meaus, because there must be, I apprebend, the performance towards the public of some work or labour as servant. The cases decided on the subject of embezzlement by a clerk or servant afford some analogy, though an imperfect one. They illustrate the subject, how- ever, to a certain extent fairly well. Mr. Francis cited many cases to which I need not refer par- ticularly. The principle to be deduced from them is that to create the relation of master and ser vant, the employer must have the control of the time and movements and duties of the employed; power to engage and to dismiss; and the duty of remunerating, paying him wages for the service rendered. Apply this standard to the case before us. Haffam was appointed by the Go- varnor; but that Lord Mansfield says goes for nothing was liable to dismissal, not by the Governor, but on the application of the creditors by the judge, or for misconduct by the judge himself as holding the powers of the Lord Chan cellor he was under the absolute control of the Court, and was paid out of the estate, not out of the Treasury. Tried by this test, and having his duties and services applied, not to the general public, but to the creditors in 31 bankruptcies to whose assignees he was countable had there been any, can it be held that be was in the public service of Her Majesty P Moreover, was the money embezzled Her Ma- josty's property? The count contains coallegation to that effect and I think that had the objection been taken before verdict it would have been fatal. After verdict, as the information follows the words of the ordinance, any omission is oured by 7 G. 4, c. 64, S. 21; Reg. 7. Goldsmith L.R. 2 C.C.R. p. 78-and so the count stands. But that does not in any way relieve the prosecution from the obligation of proving the ownership. By the ordinanco, for the sake of convenience, or rather out of necessity, in every case of larceny. ombezzlement, or fraudulent application of money, to., it shall be lawful in the information to lay the property of any such money in Her Majesty. There is the alternative given of laying the property in the person to whom it in fact belongs, or Her Majesty, if the circuristances suit. Here the property might have been laid in the creditors of the bankrupt estafes. That however must have failed, because the defendant was theinstrustee and the legal interest was vasted in him. The alternative ownership is in Her Majesty, which must fail for the same reason in point of proof. The real fact is that the defendant was a trustee and as such cannot be liable under section 57 for om. bezzling money of which he was to all intents and purposes the legal owner. Lewin on Trusts, p. 56, ed. 4. On this ground the second count fails also. This brings us to the three last of the fraudulent trustee counts in the in- formation. Under these the Case is Fory different. This law was passeul no doubt to mest the case of trustees "croated by an ex-į prossed trust as well as trustees by implication į of law. The interpretation clanse includes within the term trastoes, under express trusts, assignoos in bankruptcy. Now the Innguage of the Frandaloor Trustee Clause, Section 65 of the Ordinance 7 of 1865, is very wide. It says who over being a trustco (assignee included) of any property for the use and benefit of some other person, etc., shall with intent to defraud, convert, or appropriate the same or any part thereof to or for his own use shall be guilty of a misdemeun- our, etc. Mr. Francis with much skill tried to confine the liability to the level of cases decided ·
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under the embezzlement section of the Or- dinance. He urged that proof must be given of the actual appropriation of some specific sum to the defendant's own use, exclusive of any of the other methods moutioned in the section. How can it be proved that an assignee has lost or barut bank notes, or that he has appropriated money to the use of some other person. The two first propositions would be miatter of defence if accident could be shown. The third could not be set up, as a man is not allowed to exeuse him- self on a charge of one offence, by setting up that he committed another. But it certainly could not he the duty of the prosecution to disprove these grounds of defenes by showing an actual dealing with the money rendoring such a dis. position impossible. This .contention, however, that some specific sum must be shown to have been embezzled, is not maintainableeven in charges of embezzlement as a clerk or servant. The cases of R. v. Grove 25 L.J.M.C. 66, R. v. Lambert 2 Cox 309, R. v. Listor D. & B. 113, are all su- thorities that receipt of an aggregate amount, being proved (as by the prisoner charging himself with it) it is not accessary to prove what sum or suus he has actually erubozzled. The offence of embezzlement is committed by the formation in a man's mind of a fraudulent intention with respect to moneys which have come into his hands by virtus of his employment as clerk or servant. The outward signs or evidence are, not accounting, absconding, not paying over. The difficulty has arisen from the technical nature of the offouce, which is a species of larceny, where the taking of some specific thing must be proved. I adopt the language of Chief Justice Erle in R.v. Lambert, "There would be a constant failure of justice if I were to decide otherwise, since it is impossible in cases like the pre- sont, where a number of different amounts of money have been received, to specify which sam or suing have been embezzled." In my opinion there is abundant evidence to support the con- rictions on the conuts 3, 4 and 5, laid under the fraudulent trustee clause 65 of 7 of 1865. The receipt of a large portion of the money years ago, and of the sum of $4,831 so late os last July is clearly tranod to the defendant. None of this money has been converted to the use of the creditors: the last-mentioned sum has never been accounted for. On July 3rd ult., under pressure, the defendant prepared a balance-sheet in the estate of Lyall, Still and Co., showing a sum of $46,849 ready for distribution amongst the creditors, and this is an admission that he has it in hand to distribute. The balance-sheet was produced on that day aba meeting of creditors convened by a notice in the Gazette which he inserted himself. A meeting is held. He states that about 3 per cent. is divisible and fixes a day, after many delays, for sending the cheques. He does not perform his promise. Pressed, he makes excuses; threatened, he flies to Macao beyond the reach of the laws of the Colony. Summoned to appear before the Court of Bank- ruptcy, and hand over these vory monays under sec. 88 of the Bankruptcy Ordinance, he fails to appear; and finally he only returns in the cus- tody of a Police Officer. More conclusive proof of a conversion, which means nothing more nor less than applying those moneys to a use incon. sistent with the object for which he held them as trustee, I cannot imagine. The ovidence of a conversion is, a demand by a person authorized legally to make it, and a refusal, or what amonuts to the same thing, a failure to comply with that demand without any sufficient excuse. The convictions under the third, fourth, sud fifth counts must be upheld. I regret the length to which my judgment has rau, but I have found it difficult if not impossible to curtail it, so as to leave my meaning clear. The importance to the interests of publie justice and to the Idefendant of the question, involving in casc of a conviction ander the first couut liability to a sentence of 14 years' penal servitude, was so vital, that I no pot grudge the pains I have bestowed i on it, in trying to come to a sound conclusion, I regret that my decision does not meet with the concurrence of Mr. Justice Russell, who ou a very difficult point of law has formed a different opinion, as many lawyers might well do. I have the consolation of feeling that if I have made a mistako it is in mitigation and not in aggrava- tion of the punishment the defendant must undergo.
Mr. Justice Russell-After learning the opinions and hearing the views of the learned Acting Chief Justice in this case, it is with much diffidence and considerable doubt that I venture to express an opinion differing from that at
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